/opinions/HTMLFiles/COA/3892.htm

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

---

Ernest Steele,        Appellant,

v.

Stephen Benjamin, Director of Department of Probation, Parole and Pardon Services,        Respondent.

---

Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge

---

Opinion No. 3892
Submitted September 15, 2004 Filed November 22, 2004

---

AFFIRMED

---

Ernest Steele, of Bennettsville, pro se for Appellant.

John Benjamin Aplin, and Tommy Evans, Jr., South Carolina Department of Probation, Parole, and Pardon, of Columbia; for Respondent.

BEATTY, J.: Ernest Steele appeals the circuit courts denial of his petition for a writ of mandamus against Stephen Benjamin, Director of the South Carolina Department of Probation, Parole, and Pardon Services (the Department). We affirm. [1]

FACTS

Steele was convicted of murder in 1967 and sentenced to life imprisonment. At the time of his conviction, the law provided that a person was entitled to review for parole after serving one-third of his sentence. See 1962 Code 55-611 (Supp. 1966) (noting that the Parole Board may parole a prisoner serving a thirty year to life sentence if he has served at least ten years); 1962 Code 55-611.1 (1962) (providing that a prisoner is entitled to review for parole after he has served one-third of his sentence). The law did not specify how often an inmate who was denied parole would receive review thereafter.

Steele was paroled in 1978. Steeles parole was revoked in May 1987 for convictions in Tennessee for Possession with Intent to Resell drugs and driving under the influence. [2] Steele was again granted parole one year later in July 1988. Steele violated his parole and it was revoked on February 9, 1994, due to another conviction for Possession with Intent to Resell Heroin. Steele was denied parole when he next appeared before the Parole Board on May 24, 2000. He was informed that his next review by the Parole Board would be two years later, on August 12, 2002.

Steele filed an action in circuit court for a writ of mandamus on December 4, 2000. Steele alleged that he was eligible for annual parole review when he first became eligible for parole and that application of the statutorily required two-year review enacted in 1986 constituted an impermissible ex post facto application of law. He requested the circuit court mandate the Department to apply the annual review in place at the time of his first parole. The Department moved to dismiss the action, or, alternatively, for summary judgment. The Department argued: (1) Steele had not met the requirements to acquire a writ of mandamus; (2) he was only entitled to parole review every two years; and (3) no ex post facto violation had occurred.

A hearing was held in the matter on February 27, 2003. After Steele submitted Erwin v. State, Op. No. 93-MO-286 (S.C.S.Ct. filed Aug. 20, 1993), [3] the circuit court requested the Department to consider whether granting Steele annual parole review would be a viable option. In a letter, the Department noted that Erwin was a memorandum opinion. The Department informed the circuit court that: (1) Erwin had no precedential value; (2) because no law existed at the time of Steeles conviction regarding the timing of parole review after a denial of parole, the Departments internal policy of review every two years controlled; (3) Steele failed to exhaust his administrative remedies when he failed to seek review of the Parole Boards decision through the Administrative Law Judge Division (ALJD); and (4) if the Department allowed Steele annual review, it would also have to allow annual review to the 3,000 other inmates similarly situated, which would strain an already diminishing budget. In support of its position, the Department attached to its letter an undated, untitled copy of a document, stating the document was a copy of the Departments parole investigation policies at the time of Steeles conviction. The document stated that inmates serving a thirty-year sentence or greater who were denied parole would have a subsequent review for parole after twenty-four months.

After a subsequent hearing in the matter was held on June 2, 2003, the circuit court issued an order denying Steeles request for mandamus. [4] The court found that in allowing Steele parole review every two years instead of every year, the Department was applying the law/rule/regulation in effect at the time Mr. Steele was sentenced. Thus, the court found no violation of the ex post facto clause. The court did not address whether Steele should have exhausted administrative remedies. Steele appeals.

STANDARD OF REVIEW

Whether to issue a writ of mandamus lies within the sound discretion of the trial court, and an appellate court will not overturn that decision unless the trial court abuses its discretion. Charleston County Sch. Dist. v. Charleston County Election Commn, 336 S.C. 174, 179, 519 S.E.2d 567, 570 (1999). An abuse of discretion arises where the trial judge was controlled by an error of law or where his order is based on factual conclusions that are without evidentiary support. Tri-County Ice & Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782 (1990). An appellate court will not disturb the factual findings of the trial court on a mandamus petition if the trial courts findings are supported by any reasonable evidence. Charleston County Sch. Dist. at 179-180, 519 S.E.2d at 570.

LAW/ANALYSIS

The Department points out that Steele failed to exhaust his administrative remedies, and thus, Steele did not meet all the requirements for a writ of mandamus. [5] Steele, however, argues the circuit court had jurisdiction over the mandamus proceedings. Thus, as an initial matter, we address whether the ALJD had jurisdiction to hear Steeles claim that the Department violated the ex post facto clause when it denied him annual review of parole eligibility.

The question of whether an inmate may seek review of the Departments and the Department of Corrections final decisions under the South Carolina Administrative Procedures Act (APA) was answered by our supreme court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). The court held:

[A]n inmate may seek review of Departments final decision in an administrative matter under the APA. Placing review of these cases within the ambit of the APA will ensure that an inmate receives due process, which consists of notice, a hearing, and judicial review. It also will provide an orderly and consistent framework for resolving such matters.

Al-Shabazz, 338 S.C. at 369, 527 S.E.2d at 750. The court emphasized that not all APA provisions apply to the internal prison disciplinary or decision-making process: The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendments protection of liberty and property. Id. (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972)). The court also said that review of non-collateral or administrative matters, although limited in scope, must be provided in some form, and the APA is the most obvious and practical solution. Id. at 373, 527 S.E.2d at 752.

Ex post facto claims are non-collateral matters. Jernigan v. State, 340 S.C. 256, 260, 531 S.E.2d 507, 509 (2000). In Jernigan, the appellant, like Steele, argued that the change from annual parole eligibility review to biannual review violated the ex post facto clause of the federal and state constitutions. Jernigan brought his claim in a PCR application in the circuit court. Our supreme court held that Jernigans ex post facto claim was non-collateral and had not received an APA review. The court held: Accordingly, as a non-collateral matter, petitioners claim should be remanded to the appropriate agency to allow it to make a final decision on petitioners claim. Id.

In Sullivan v. South Carolina Department of Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003), our supreme court held that the only way that an ALJD can obtain subject matter jurisdiction is that the claim must implicate a state created liberty interest sufficient to trigger procedural due process guarantees. Sullivan, 355 S.C. at 443, 586 S.E.2d at 127 (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1972); Furtick v. S.C. Dept of Probation, Parole, & Pardon Servs., 352 S.C. 594, 598, 576 S.E.2d 146, 149 (2003); and Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757)). Sullivan seems to imply that a quantitative analysis of the liberty interest must be conducted.

The requirement of a liberty interest as pronounced in Sullivan is not new. It was recognized in Al-Shabazz, postulated in Jernigan (citing Al-Shabazz), and directly addressed in Furtick. However, the quantification of the liberty interest was central in Sullivan, yet, like some constitutional issues, it remained nebulous. Sullivan cited Furtick as an example of a sufficient liberty interest required to seek due process in the ALJD. Furtick found the permanent denial of parole eligibility implicates a liberty interest sufficient to require at least minimal due process. Furtick, 352 S.C. at 598, 576 S.E.2d at 149.

The use of the word permanent in Sullivan and Furtick does not mean that there must be a permanent denial of parole eligibility before a sufficient liberty interest is involved. It is merely one of the ways that a sufficient liberty interest may be involved. We must be mindful of the facts in Furtick. Furtick actually had been permanently denied parole eligibility. Sullivan recognizes that Furtick established that an inmate has a right to a ALJD review of an agencys final decision denying parole eligibility, but an inmate does not have a right to a review of a denial of parole. The distinction is that the review or consideration for parole is a right granted by statute whereas parole is only a privilege.

In the present case, Steele is not appealing the denial of parole; he is appealing the Parole Boards change in the time frame in which it will review parole. The question then becomes whether Steeles claim raises a sufficient liberty interest to trigger due process requirements. Jernigan is factually similar to the present case. Jernigan, like Steele, alleged that the change from annual parole eligibility review to biannual review violated the ex post facto clause. The Jernigan court held that the change from annual parole eligibility review to biannual review produces a sufficient risk of prolonging incarceration by one year and increasing the measure of punishment attached to the covered crimes. It is axiomatic that any period of incarceration implicates a sufficient liberty interest to trigger due process requirements.

Accordingly, Steeles claim was appropriate for disposition under the APA and should have been reviewed by the ALJD. Because he failed to exhaust his administrative remedies, Steeles petition for a writ of mandamus was appropriately denied.

CONCLUSION

Steeles complaint that the Departments application of biannual parole review to him constituted an ex post facto violation, potentially lengthening the period of his incarceration by one year, implicated a liberty interest. Thus, Steele should have exhausted his administrative remedies by bringing this action pursuant to the APA. Because he failed to pursue this matter through administrative means, his petition for a writ of mandamus was appropriately dismissed.

Accordingly, the circuit courts dismissal of this action is

AFFIRMED. [6]

STILWELL, and SHORT, JJ., concur.

---